Immigration Courts:

Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges

GAO-17-438: Published: Jun 1, 2017. Publicly Released: Jun 1, 2017.

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What GAO Found

GAO's analysis showed that the Executive Office for Immigration Review's (EOIR) case backlog—cases pending from previous years that remain open at the start of a new fiscal year—more than doubled from fiscal years 2006 through 2015 (see figure) primarily due to declining cases completed per year.

Immigration Courts' Case Backlog, Fiscal Years 2006 through 2015

Immigration Courts' Case Backlog, Fiscal Years 2006 through 2015

EOIR has taken some steps to address its workforce needs, such as entering into a contract to determine judicial staff workloads, but does not have a workforce plan that would help EOIR better address staffing needs, such as those resulting from the 39 percent of its immigration judges who are currently eligible for retirement. EOIR also does not have efficient practices for hiring new immigration judges, which has contributed to immigration judges being staffed below authorized levels. GAO found that it took an average of 742 days to hire new judges from 2011 through August 2016. By assessing its hiring process and developing a hiring strategy that targets staffing needs, EOIR would be better positioned to hire judges more quickly and address its staffing gaps.

One example of EOIR's efforts to assess court operations is the extent and reasons why judges issue continuances—temporary case adjournments until a different day or time. EOIR collects continuance data, but does not systematically assess them. GAO's analysis of continuance records showed that that the use of continuances increased by 23 percent from fiscal years 2006 through 2015. Systematically analyzing the use of continuances could provide EOIR officials with valuable information about challenges the immigration courts may be experiencing, such as with operational issues like courtroom technology malfunctions, or areas that may merit additional guidance for immigration judges.

Why GAO Did This Study

The Department of Justice's EOIR is responsible for conducting immigration court proceedings, appellate reviews, and administrative hearings to fairly, expeditiously, and uniformly administer and interpret U.S. immigration laws.

GAO was asked to review EOIR's management of the immigration court system and options for improving EOIR's performance. This report addresses, among other things, (1) what EOIR data indicate about its caseload, including the backlog of cases; (2) how EOIR manages and oversees immigration court operations, including workforce planning and hiring; and (3) the extent to which EOIR has assessed immigration court performance, including case continuance data. GAO analyzed EOIR's case data from fiscal years 2006 through 2015—the most current data available—reviewed EOIR documentation, interviewed agency officials, and conducted visits to six immigration courts selected to include courts with relatively large and small case backlogs, among other things. GAO also interviewed experts and stakeholders selected based upon, among other things, their published work on the immigration court system.

What GAO Recommends

GAO is making 11 recommendations to, among other things, improve EOIR's workforce planning, hiring, and analysis of continuance data. EOIR stated that it agrees with most of the recommendations, but did not specify whether it agrees with individual recommendations. GAO continues to believe that all 11 recommendations remain valid as discussed further in this report.

For more information, contact Rebecca Gambler at (202) 512-8777 or gamblerr@gao.gov.

Recommendations for Executive Action

  1. Status: Open

    Comments: In August 2017, EOIR officials reported that its Immigration Court Staffing Committee, established in April 2017, would, among other things, examine how to best leverage the judicial and court staff workload model to address its short- and long-term staffing needs, assess the critical skills and competencies needed to achieve future programmatic results, and develop strategies to address human capital gaps. This committee expects to complete its work in March 2018. EOIR also reported that it is developing an agency-wide strategic plan that includes human capital planning as a critical component, which will be used to guide workforce planning for the entire agency. To fully address this recommendation, EOIR's Immigration Court Staffing Committee should complete its work and provide documentation demonstrating that it: 1) addressed the agency's short- and long-term staffing needs; 2) identified the critical skills and competencies needed to achieve future programmatic results; and 3) developed strategies to address human capital gaps. EOIR should also provide documentation, including the completed strategic plan, describing how the agency tailored its human capital strategies to address gaps in the number, deployment, and alignment of human capital approaches; and is monitoring and evaluating the agency's progress toward its human capital goals.

    Recommendation: To better address current and future staffing needs, the Director of EOIR should develop and implement a strategic workforce plan that addresses, among other areas, key principles of effective strategic workforce planning, including (1) determining critical skills and competencies needed to achieve current and future programmatic results; (2) developing strategies that are tailored to address gaps in number, deployment, and alignment of human capital approaches for enabling and sustaining the contributions of all critical skills and competencies; and (3) monitoring and evaluation of the agency's progress toward its human capital goals and the contribution that human capital results have made toward achieving programmatic results.

    Agency Affected: Department of Justice: Executive Office for Immigration Review

  2. Status: Open

    Comments: In August 2017, EOIR stated that it is actively implementing a new streamlined hiring plan that aims to reduce the hiring timeline. According to EOIR, this revised hiring plan, among other things, sets clear deadlines for assessing applicants moving through different stages of the process and for making decisions on advancing applicants to the next stage, as well as allows for temporary appointments for all selected judges pending full background investigations. EOIR stated that it will use this revised process in the future to fill judge vacancies. Regarding the development of a hiring strategy, EOIR stated that it recognizes the importance of assessing immigration judge hiring needs holistically to continue to develop an overall immigration judge hiring strategy, and will utilize a planned human capital strategy and additional data to further refine the hiring process. To fully address this recommendation, EOIR should continue its efforts to assess and improve its hiring process and provide documentation describing: 1) its new hiring process, including how EOIR assessed the prior hiring process to identify opportunities for efficiency; 2) its hiring strategy targeting short- and long-term human capital needs; and (3) the corrective actions EOIR implemented in response to the assessment results, such as eliminating procedures that increased the length of the hiring process.

    Recommendation: To better address EOIR's immigration judge staffing needs, the Director of EOIR should: (1) assess the immigration judge hiring process to identify opportunities for efficiency; (2) use the assessment results to develop a hiring strategy that targets short- and long-term human capital needs; and (3) implement any corrective actions related to the hiring process resulting from this assessment.

    Agency Affected: Department of Justice: Executive Office for Immigration Review

  3. Status: Open

    Comments: As of August 2017, EOIR reported that it had selected the EOIR Investment Review Board to serve as the ECAS oversight body with the Office of Information Technology (OIT) directly responsible for the management of the ECAS program. To fully address this recommendation, EOIR should provide documentation related to this decision.

    Recommendation: To help ensure that EOIR meets its cost and schedule expectations for EOIR Courts and Appeals Systems (ECAS), the EOIR Director should identify and establish the appropriate entity for exercising oversight over ECAS through full implementation.

    Agency Affected: Department of Justice: Executive Office for Immigration Review

  4. Status: Open

    Comments: As of August 2017, EOIR reported that it had selected the EOIR Investment Review Board to serve as the ECAS oversight body with the Office of Information Technology (OIT) directly responsible for the management of the ECAS program. According to EOIR, OIT will record on a weekly basis all financial metrics, risks, issues, and corrective actions in EOIR's project management tool, as well as regularly evaluating the program's performance and progress and immediately implementing any needed corrective actions. To fully address this recommendation, EOIR should document and implement an oversight plan that describes how the EOIR Investment Review Board and OIT will oversee the full implementation of ECAS, including how these bodies will, consistent with best practices for overseeing IT projects: 1) monitor program performance and progress toward expected cost, schedule, and benefits; (2) ensure that corrective actions are identified and assigned to the appropriate parties at the first sign of cost, schedule, or performance slippages; and (3) ensure that corrective actions are tracked until the desired outcomes are achieved.

    Recommendation: To help ensure that EOIR meets its cost and schedule expectations for ECAS, the EOIR Director should document and implement an oversight plan that is consistent with best practices for overseeing IT projects, including (1) establishing how the oversight body is to monitor program performance and progress toward expected cost, schedule, and benefits; (2) ensuring that corrective actions are identified and assigned to the appropriate parties at the first sign of cost, schedule, or performance slippages; and (3) ensuring that corrective actions are tracked until the desired outcomes are achieved.

    Agency Affected: Department of Justice: Executive Office for Immigration Review

  5. Status: Open

    Comments: In August 2017, EOIR stated that it is studying how to collect more complete and reliable data on the number and type of hearings it conducts through video teleconference (VTC). To fully address this recommendation, once EOIR determines how to collect more complete and reliable VTC hearing data, EOIR should provide documentation describing its approach and evidence of its implementation.

    Recommendation: To provide further assurance that EOIR's use of video teleconference (VTC) in immigration hearings is outcome-neutral, the Director of EOIR should collect more complete and reliable data on the number and type of hearings it conducts through VTC.

    Agency Affected: Department of Justice: Executive Office for Immigration Review

  6. Status: Open

    Comments: In August 2017, EOIR stated that it is planning a pilot project to collect data on the number and type of appeals to the Board of Immigration Appeals (BIA) in which the use of video teleconference (VTC) formed an element of the basis for the appeal. EOIR expects to begin this 6-month pilot project in the first quarter of fiscal year 2018. Additionally, EOIR stated that it will assess the feasibility of collecting data on the number of filed motions requesting an in-person hearing instead of a VTC hearing. To fully address this recommendation, EOIR should continue these efforts and begin systematically collecting data on appeals in which the use of VTC formed some basis for the appeal and the number of in-person hearing motions filed.

    Recommendation: To provide further assurance that EOIR's use of VTC in immigration hearings is outcome-neutral, the Director of EOIR should collect data on appeals in which the use of VTC formed some basis for the appeal, and the number of in-person hearing motions filed.

    Agency Affected: Department of Justice: Executive Office for Immigration Review

  7. Status: Open

    Comments: In August 2017, EOIR stated that it intends to analyze data on appeals in which the use of VTC formed some basis for the appeal from the Board of Immigration Appeals' pilot program as well as other data to further assess any effects of video teleconference (VTC) usage on immigration hearings. To fully address this recommendation, EOIR should, pending the results of the pilot program, use these and other data to assess any effects of VTC on immigration hearings and, as appropriate, address any issues identified through such an assessment.

    Recommendation: To provide further assurance that EOIR's use of VTC in immigration hearings is outcome-neutral, the Director of EOIR should use these and other data to assess any effects of VTC on immigration hearings and, as appropriate, address any issues identified through such an assessment.

    Agency Affected: Department of Justice: Executive Office for Immigration Review

  8. Status: Open

    Comments: In August 2017, EOIR stated that it partially agreed with this recommendation and would create a mechanism to solicit open-ended feedback from respondents regarding their satisfaction and experience with video teleconference (VTC) hearings, including the audio and visual quality of the hearing. EOIR reported that it is exploring and expects to implement some options by the first quarter of fiscal year 2018, such as a feedback portal on the EOIR website, a dedicated e-mail box, or a comment card for distribution to respondents at immigration courts and detention centers where VTC hearings are held. To fully address this recommendation, EOIR should continue to explore and implement a mechanism to solicit and monitor feedback from respondents regarding their satisfaction and experiences with VTC hearings, including the audio and visual quality of the hearing.

    Recommendation: To further ensure that EOIR's VTC hearings meet all user needs and help EOIR identify and address technical issues with VTC hearings, the Director of EOIR should develop and implement a mechanism to solicit and monitor feedback from respondents regarding their satisfaction and experiences with VTC hearings, including the audio and visual quality of the hearing.

    Agency Affected: Department of Justice: Executive Office for Immigration Review

  9. Status: Open

    Comments: In August 2017, EOIR stated that it agrees that the agency should measure case completions in all categories and is evaluating the best way to measure its courts' performance to improve efficiency and productivity. Additionally, EOIR reported that it is working with the immigration judges' union to conduct this assessment and expects to complete this evaluation and begin working toward making any changes to its performance assessment system by the second quarter of fiscal year 2018. To fully address this recommendation, EOIR should continue these efforts and establish and monitor comprehensive case completion goals, including a goal for completing non-detained cases not currently captured by performance measures, and goals for cases it considers a priority.

    Recommendation: To better assess court performance and use data to identify potential management challenges, the Director of EOIR should establish and monitor comprehensive case completion goals, including a goal for completing non-detained cases not currently captured by performance measures, and goals for cases it considers a priority.

    Agency Affected: Department of Justice: Executive Office for Immigration Review

  10. Status: Open

    Comments: In August 2017, EOIR stated that it will further analyze continuance data to identify and address operational challenges as well as determine areas where immigration judges might benefit from additional guidance or training on the use of continuances. EOIR plans to prepare new reports assessing continuance data by the first quarter of fiscal year 2018. Additionally, EOIR reported that it anticipates releasing a new Operating Policies and Procedures Memorandum addressing the appropriate use of continuances in August 2017. To fully address this recommendation, EOIR should continue to systematically analyze continuance data to identify any operational challenges faced by courts or areas for additional guidance or training, and address any challenges through taking actions such as issuing the new memorandum on continuances.

    Recommendation: To better assess court performance and use data to identify potential management challenges, the Director of EOIR should systematically analyze immigration court continuance data to identify and address any operational challenges faced by courts or areas for additional guidance or training.

    Agency Affected: Department of Justice: Executive Office for Immigration Review

  11. Status: Open

    Comments: In August 2017, EOIR stated that it partially agreed with this recommendation and will continue to monitor the timeliness and accuracy of NTA recording and implement corrective actions as needed. Additionally, EOIR stated that it will explore the need to create new guidance for immigration court staff to address instances where EOIR exceeds average recording times timeframes in the future. To fully implement this recommendation, EOIR should update its policies and procedures to better ensure the timely and accurate recording of NTAs, and thus provide greater assurance that EOIR's case management data are accurate, including case completion times and the size of its case backlog.

    Recommendation: To better assess court performance and use data to identify potential management challenges, the Director of EOIR should update policies and procedures to ensure the timely and accurate recording of Notices to Appear.

    Agency Affected: Department of Justice: Executive Office for Immigration Review

 

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